论刑事诉讼被害人的权利保护
发布时间：2018-07-23 19:16
【摘要】：在时下的中国，对刑事诉讼被害人权利保护方面，还存在许多不足和不完善的地方。这既体现在现有法律规定上，也体现在司法实务和立法、执法人员的观念中。比如在参与庭审方面，被害人没有最后陈述权，也没有明确规定被害人是否参加庭审；在起诉权方面，在公诉案件中被害人的起诉权受到限制，很多情况下其合法权益会受到损害；在上诉权方面，法律并没有赋予被害人以直接的上诉权，而仅仅能通过公诉机关来间接行使抗诉权，至于是否抗诉，法律并没有赋予被害人以决定权；在附带民事诉讼方面，被害人没有精神损害赔偿请求权；在国家补偿制度方面，国家赔偿法仅规定了犯罪嫌疑人、被告人的赔偿制度，被害人则没有受到同样重视。造成上述现象的原因是多方面的，既有法律观念和传统（如不同法系之间当事人的地位不同）的原因，也有立法目的、执法理念等方面的原因。但随着历史的发展、社会的进步、国情的改变，对刑事诉讼被害人权利保护也应逐步完善。本论文从广泛地考察被害人学、犯罪学及现行的刑事诉讼法关于被害人的规定等角度出发，以此来讨论被害人在刑事诉讼法上的概念、特征及其诉讼地位。进而通过历史考察的方法、比较的方法、实证考察的方法，首先是考察了四个不同历史阶段刑事诉讼被害人权利变化发展状况；接着用比较的方式探究了大陆法系中的职权主义模式、英美法系的对抗模式和犯罪控制模式中，被害人在刑事诉讼中的地位和作用，也剖析了三种模式的优劣。接着阐明了本论文的主要法理依据和观念。即当代各国取得广泛共识的联合国宣言中规定四项基本内容。这四项内容包括取得公理和公平待遇、赔偿、补偿、援助。同时，也包括程序正义、法治理念和保障人权三种观念。进而阐明了本论文的三方面现实意义，即构建和谐社会的需要、落实保障人权的需要、推进司法改革的需要。接下来对我国在刑事诉讼被害人权利保护方面的现实状况进行全面考察。之后通过实证考察的方法、比较考察的方法，，以求探究我国对刑事诉讼受害人权利保护中存在的不足和有待完善之处。这些不足分别是：知情权方面、参与庭审方面、起诉权方面、上诉权方面、代理制度方面、刑事附带民事诉讼方面和国家补偿制度方面等七项欠缺。最后，本论文提出了刑事诉讼被害人权利保护的完善方法与对策。从大的方面提出要改变立法和司法实务中对被害人权利保护的法律观念；在诉讼程序中对被害人权利保护的完善和对策；在实体权利保障方面的完善和对策。在程序性权利保障的完善和对策中，提出了被害人控告权、诉讼参与权、知情权、上诉权、量刑建议权、附带民事诉讼中精神赔偿问题的完善和对策。在实体性权利保护的完善和对策中提出了改革刑事附带民事诉讼制度；增加和建立被害人国家补偿制度，并提出该制度应当确立的原则、对象范围、相应程序、补偿金数额的确定标准和方法、国家补偿金的获取途径和补偿金的管理机构设置。本论文希望对刑事诉讼被害人权利保护在法律观念转变、刑事诉讼立法、刑事诉讼司法实务上有一定的参考价值。
[Abstract]:In China, there are still many shortcomings and imperfect places in the protection of the rights of the victims of criminal proceedings. This is not only reflected in the existing legal provisions, but also in the judicial practice and legislation, and in the concept of the law enforcement personnel. For example, the victim does not have the right of final statement to participate in the court trial, and does not specify whether the victim is involved or not. In the case of prosecution, the right of the victim to be prosecuted in the prosecution case is restricted, and in many cases its legitimate rights and interests will be damaged; in the case of the right of appeal, the law does not give the victim a direct right to appeal, but it can only indirectly exercise the right of protest through the public prosecution, and the law has not been given to the prosecution. The victim has the right to decide; in the case of incidental civil action, the victim has no claim for compensation for mental damage; in the state compensation system, the state compensation law only stipulates the criminal suspect, the defendant's compensation system, and the victim has not been given the same attention. The reasons for the system (such as the different status of the parties in different legal systems) also have the reasons for the legislative purpose and the concept of law enforcement. However, with the development of the history, the progress of the society and the change of the national conditions, the protection of the rights of the victims of the criminal procedure should also be gradually perfected. This paper has extensively investigated the study of victims, Criminology and the current criminal procedure law. In order to discuss the concept, characteristics and status of the victim in the criminal procedure law, the author, through the method of historical investigation, the method of comparison and the method of empirical investigation, first inspected the situation of the change of the rights of the victims of the criminal litigants in four different historical stages, and then used the comparison. The mode of authority doctrine in the continental law system, the position and function of the victim in the criminal procedure and the advantages and disadvantages of the three models are also explored in the continental law system, and then the main legal basis and concept of this thesis are clarified. The four contents include the acquisition of axiomatic and fair treatment, compensation, compensation, and assistance. At the same time, it also includes three concepts of procedural justice, the concept of the rule of law and the protection of human rights, and then clarifies the practical significance of the three aspects of this thesis, that is, the needs of building a harmonious society, the implementation of the needs of protecting human rights, and the need to promote the reform of the judiciary. Then the actual situation of the protection of the rights of the victim in criminal procedure is thoroughly investigated. After the method of empirical investigation, the methods of comparison are made to explore the shortcomings and the defects of our country to protect the rights of the victims of criminal proceedings. These shortcomings are: the right to know, and to participate in the court trial. There are seven deficiencies in the right of prosecution, the right of appeal, the right of appeal, the agency system, the criminal incidental civil action and the state compensation system. Finally, this paper puts forward the perfect methods and Countermeasures for the protection of the rights of the victims of criminal proceedings. Ideas; the perfection and Countermeasures of the protection of the rights of the victims in the proceedings; the improvement and Countermeasures in the protection of substantive rights. In the improvement and Countermeasures of the procedural rights guarantee, the right to accuse the victims, the right to participate in the litigation, the right to know, the right to appeal, the right to measure the sentencing, and the perfection and the right of the spiritual compensation in the incidental civil action In the perfection and Countermeasures of the protection of substantive rights, we put forward the reform of the criminal incidental civil litigation system, and increase and establish the state compensation system for the victims, and put forward the principles, the scope of the object, the corresponding procedures, the determination standards and methods of the amount of the compensation, the way to obtain the state compensation and the management of the compensation. It is hoped that the protection of the rights of the victims of criminal litigation has a certain reference value in the change of the legal concept, the legislation of the criminal procedure and the judicial practice of the criminal procedure.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
本文编号：2140391
[Abstract]:In China, there are still many shortcomings and imperfect places in the protection of the rights of the victims of criminal proceedings. This is not only reflected in the existing legal provisions, but also in the judicial practice and legislation, and in the concept of the law enforcement personnel. For example, the victim does not have the right of final statement to participate in the court trial, and does not specify whether the victim is involved or not. In the case of prosecution, the right of the victim to be prosecuted in the prosecution case is restricted, and in many cases its legitimate rights and interests will be damaged; in the case of the right of appeal, the law does not give the victim a direct right to appeal, but it can only indirectly exercise the right of protest through the public prosecution, and the law has not been given to the prosecution. The victim has the right to decide; in the case of incidental civil action, the victim has no claim for compensation for mental damage; in the state compensation system, the state compensation law only stipulates the criminal suspect, the defendant's compensation system, and the victim has not been given the same attention. The reasons for the system (such as the different status of the parties in different legal systems) also have the reasons for the legislative purpose and the concept of law enforcement. However, with the development of the history, the progress of the society and the change of the national conditions, the protection of the rights of the victims of the criminal procedure should also be gradually perfected. This paper has extensively investigated the study of victims, Criminology and the current criminal procedure law. In order to discuss the concept, characteristics and status of the victim in the criminal procedure law, the author, through the method of historical investigation, the method of comparison and the method of empirical investigation, first inspected the situation of the change of the rights of the victims of the criminal litigants in four different historical stages, and then used the comparison. The mode of authority doctrine in the continental law system, the position and function of the victim in the criminal procedure and the advantages and disadvantages of the three models are also explored in the continental law system, and then the main legal basis and concept of this thesis are clarified. The four contents include the acquisition of axiomatic and fair treatment, compensation, compensation, and assistance. At the same time, it also includes three concepts of procedural justice, the concept of the rule of law and the protection of human rights, and then clarifies the practical significance of the three aspects of this thesis, that is, the needs of building a harmonious society, the implementation of the needs of protecting human rights, and the need to promote the reform of the judiciary. Then the actual situation of the protection of the rights of the victim in criminal procedure is thoroughly investigated. After the method of empirical investigation, the methods of comparison are made to explore the shortcomings and the defects of our country to protect the rights of the victims of criminal proceedings. These shortcomings are: the right to know, and to participate in the court trial. There are seven deficiencies in the right of prosecution, the right of appeal, the right of appeal, the agency system, the criminal incidental civil action and the state compensation system. Finally, this paper puts forward the perfect methods and Countermeasures for the protection of the rights of the victims of criminal proceedings. Ideas; the perfection and Countermeasures of the protection of the rights of the victims in the proceedings; the improvement and Countermeasures in the protection of substantive rights. In the improvement and Countermeasures of the procedural rights guarantee, the right to accuse the victims, the right to participate in the litigation, the right to know, the right to appeal, the right to measure the sentencing, and the perfection and the right of the spiritual compensation in the incidental civil action In the perfection and Countermeasures of the protection of substantive rights, we put forward the reform of the criminal incidental civil litigation system, and increase and establish the state compensation system for the victims, and put forward the principles, the scope of the object, the corresponding procedures, the determination standards and methods of the amount of the compensation, the way to obtain the state compensation and the management of the compensation. It is hoped that the protection of the rights of the victims of criminal litigation has a certain reference value in the change of the legal concept, the legislation of the criminal procedure and the judicial practice of the criminal procedure.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D925.2
【参考文献】
相关期刊论文 前1条
1 刘永盛;试论刑事附带精神损害赔偿诉讼[J];法律适用;1995年06期
本文编号：2140391
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